SAN FRANCISCO – We're about to find out what's in the BALCO honey pot. Or are we?
Last week the government abandoned the four-year-old protective order that prohibited Bay Area Laboratory Co-Operative mastermind Victor Conte and three other original defendants from revealing grand jury testimony and other key evidence. In asking a judge to lift the order, prosecutors appeared to be gambling that the massive BALCO files will reveal more negative information about Barry Bonds than about the federal government and its tactics.
However, on Monday night prosecutors filed a motion that appears to be an attempt to un-ring the bell and keep the thousands of pages of material under wraps. While acknowledging that lifting the protective order removed "extra protections to the handling of the material," prosecutors argued that the order doesn't "unseal any previously sealed materials in this case, nor does it have the effect of making public nonpublic materials maintained by the parties."
Sounds like an issue the presiding judge, Susan Illston, will have to weigh in on. And soon.
"I think [the four original defendants] legitimately have the [evidence]," said Charles La Bella, a former U. S. attorney and former chief of the criminal division for the Southern District of California who now practices criminal defense law in San Diego. "There is no longer a protective order. It seems like they could talk to anybody and they are OK."
The prosecution's request last week to vacate the protective order was curious on its face. Bonds is the prosecution's final target in the six-year probe that began with raids on BALCO in 2003, and his perjury trial is scheduled to begin in March. Did prosecutors believe that making evidence public would help convict Bonds, or were they merely trying to get in a few body punches before the far-reaching BALCO case draws to a close? In this game, not everything is what it seems.
"Given the high degree of interest in Washington in steroids and the Mitchell Report, it may be that the government wants to leak names and testimony but do it in a non-leakable manner," said a top San Francisco criminal defense attorney who requested anonymity.
The protective order was central to a lengthy, possibly dubious phase of the BALCO investigation because it gave the government largely unchecked power to wage a campaign against professional athletes who allegedly used performance-enhancing drugs or lied about what they knew, and coaches and others who allegedly trafficked performance-enhancing drugs. Because testimony and evidence was known only to prosecutors and investigators, government targets such as track star Marion Jones, track coach Trevor Graham and former NFL player Dana Stubblefield were lured into what amounted to perjury traps.
The strategy, spearheaded by IRS special agent Jeff Novitzky, won the government a number of convictions for lying to a federal agent, and helped Novitzky strong-arm steroid dealers into implicating pitcher Roger Clemens in the scandal.
If the protective order indeed remains vacated, any of the four original BALCO defendants – Bonds' former personal trainer Greg Anderson, BALCO vice president James Valente and track coach Remi Korchemny, in addition to Conte – could bring to light evidence that illustrates Novitzky's questionable tactics.
And the documents might also reveal something else the government didn't anticipate – a lack of fairness in the investigation. Some athletes apparently were shown the evidence against them in advance of testifying. Some were seemingly able to hedge on the truth without fear of prosecution. Some Major League Baseball officials might have been given a pass.
Furthermore, targets of the probe who believed they were home free could suffer collateral damage in the court of public opinion. Past and present major leaguers who may have testimony made public include Gary Sheffield, Jason Giambi, Randy Velarde, A.J. Pierzynski, Benito Santiago, Bobby Estalella, Armando Rios and Marvin Benard.
It is somewhat surprising that Judge Illston lifted the protective order because she took it so seriously. The longest prison sentence in the massive steroids investigation has not been for taking drugs or lying about them. It was the 30 months handed down to attorney Troy Ellerman for leaking grand jury transcripts and other documents to the San Francisco Chronicle, information that provided the backbone of the book "Game of Shadows."
And in a display of law enforcement muscle, a SWAT team raided Conte's home in January, 2005, under the mistaken belief that he had violated the protective order. Two years later, Conte again had a fight on his hands. The government filed a secret motion asking the judge to order Conte and the other defendants to destroy their copies of sealed testimony and evidence. Illston initially ordered the destruction of the files, then reversed herself when Conte appealed.
Meanwhile, snippets of evidence and testimony that furthered the cause of prosecutors were periodically leaked, seemingly designed to convince the public that the entire BALCO endeavor was worth the time and money.
Last week came the dramatic reversal. The government argued in court that it would help the Bonds trial stay on schedule if the judge would grant the defense teams' expansive discovery request and discard the protective order. Prosecutors also stated that the heightened need for secrecy was no longer necessary because many of the original investigations are "concluded or no longer active," an indication that Bonds is BALCO's final target.
Not everyone is free to divulge the evidence. The standard grand jury secrecy rule – known as Rule 6e – remains in place, which indefinitely prohibits prosecutors, investigators, court reporters and grand jurors from disclosing grand jury material. Jack Gillund, a spokesman for the U.S attorneys' office in San Francisco, said the government would not make the files public: "We're still bound by the 6e order that precludes us from disseminating the material."
Are the four original defendants free to share? They all possess most if not all of the thousands of pages of evidence because their attorneys were given it as part of the discovery process at the time they were prosecuted. However, it isn't clear whether any of them would divulge evidence damaging to Bonds.
We've entered the last stages of BALCO. The government has declared that nothing of ongoing prosecutorial or investigative value remains in its voluminous files. Illston has already said the government's resources would be better spent by bringing the half-decade long steroids purge to a close. But first she might need to deal with the prosecution's waffling regarding precisely what is meant by vacating the protective order.